Dolan & Ors v Secretary of State for Health And Social Care & Anor

Judicial review examines legality, not the merits of political, social or economic choices entrusted to ministers. The Public Health (Control of Diseases) Act 1984 confers broad power to make general regulations addressing infectious disease, including restrictions on persons, premises and businesses. A minister does not unlawfully fetter discretion by using rational public-health tests while weighing wider health, economic and social effects. In a pandemic, restrictions may be proportionate where they address a serious infectious threat, are time-limited, regularly reviewed and ended when no longer necessary. The court will refuse permission where a challenge is academic, unsupported by evidence, irrationality is unarguable, or Convention interference is plainly justified. The amended overnight-stay restriction did not arguably deprive persons of liberty under Article 5, while gathering restrictions interfered with Article 11 but were not arguably disproportionate.

The claimants sought permission to challenge the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, as amended, and the alleged decision to close schools and educational establishments. They relied on ultra vires, fettering of discretion, failure to consider relevant matters, irrationality and disproportionality, together with Articles 5, 8, 9 and 11 of the Convention and Article 1 of the First Protocol. A third claimant, AB, was joined anonymously. The court also considered amended challenges to the current regulations and the continuing relevance of the March announcement on schools. The Article 9 issue was adjourned for further submissions because the regulations had changed after the hearing.

1. Disposition. Permission to apply for judicial review was refused on all grounds except that the discrete Article 9 issue concerning communal worship was adjourned for further submissions. The school-closure challenge and challenges to the original regulations 6 and 7 were academic.
2. Statutory power. Sections 45C and related provisions of the Public Health (Control of Diseases) Act 1984 authorised general regulations applying across England. The power was not confined to individualised orders concerning infected persons, premises or things. It also extended, in appropriate circumstances, to restrictions on movement, contact, work, trading and business operations.
3. Domestic public law. The five government tests for assessing coronavirus risks were a lawful and rational method of reviewing the restrictions. The evidence showed that wider health effects, economic and social consequences, scientific uncertainty and less restrictive alternatives had been considered. The decisions to make and maintain the regulations were not arguably irrational. The proportionality duty under section 45D applied both to the original regulations and later amendments. In the circumstances of a novel, highly infectious disease, the time limits, periodic reviews and duty to terminate unnecessary restrictions supported the conclusion that the measures were not arguably disproportionate.
4. Convention rights. The current overnight-stay restriction did not arguably amount to deprivation of liberty under Article 5. The Article 5 assessment concerned the practical impact of the measure, including its nature, duration, effects and implementation. The restrictions on family contact were justified and proportionate under Article 8. Regulation 7 interfered with Article 11, but there was no realistic prospect that it would be found disproportionate given the pandemic, the aim of reducing transmission, and the safeguards of review and expiry. The Article 1 property claim lacked sufficient evidence of deprivation or unlawful interference.
5. Schools and procedure. No legal measure had been identified requiring schools to close. Government policy was to encourage phased reopening, so the challenge served no practical purpose. Amendments concerning discrete changes to the regulations were permitted where procedural flexibility was appropriate.

First-instance application for permission to apply for judicial review. No prior appellate decision is stated in the judgment.